Indefinite detention of US Citizens without trial ratified by US Senate: Obama to sign to law

The US Senate on Thursday December 20 voted 86 to 13 in favor of the National Defense Authorization Act for Fiscal Year 2012, allowing the indefinite detention of American citizens without due process of law and legal trial.

The United States senate ratified this amendment to the NDAA-2012 exactly 220 years to the date after the Bill of Rights was ratified.

After a back-and-forth in recent days between both the Senate and House yielded intense criticism from Americans attempting to hold onto their Constitutional rights, NDAA FY2012 is now on its way to the White House, where yesterday the Obama administration revealed that the president would not veto the legislation, cancelling out a warning he offered less than a month earlier.

Speaking before the Senate this afternoon, Sen. Lindsey Graham (Rep-SC) told his colleagues, “I hope you believe America is part of the battlefield.” The United States is at war, he insisted, and anyone alleged to be in opposition to the US government’s game will now be subjected to military-style detention indefinitely.

In his remarks Thursday afternoon, Senator Graham attacked America’s current legal system, critiquing it for allowing suspected terrorists to be treated as “common criminals.”

“We think al-Qaeda operatives, citizens or not, are not common criminals. We think they are crazy people,” he said.

“If you’re an American citizen and you want to help…destroy your own country, here is what’s coming your way,” cautioned the senator. The threat he went on to impose involved indefinite military detention for everyone.

“What this legislation does,” lectured Levin, “says from the Congress’ point-of-view, that we expressly authorize the indefinite detention” of someone deemed a threat. “We recognize the authority of this president and every other president to hold an enemy combatant indefinitely, whether they are captured home or abroad, because that only makes sense.”

“How long can you hold them? As long as it takes to make us safe,” said Graham.

The senator added that, “when you join the enemy…we aren’t worried about how we’re going to prosecute you right away.”

Kelly Ayotte, a freshman Republican senator from New Hampshire, has proposed legislation that would repeal current laws that make harsh torture techniques illegal, a move that the American Civil Liberties Union says would "dangerously roll back" restrictions that Congress approved in 2005’s McCain Anti-Torture Amendment.

Republican Sen. Rand Paul (R-Ky.) went after his own Republican Senator John McCain (R-Ariz) on Wednesday for stripping a provision from the National Defense Authorization Act that Paul and others have said would have prevented the U.S. government from holding U.S. citizens indefinitely without a trial.

“The decision by the NDAA conference committee, led by Sen. John McCain (R-Ariz.) to strip the National Defense Authorization Act of the amendment that protects American citizens against indefinite detention now renders the entire NDAA unconstitutional,” Paul said in an emailed statement.

“I voted against NDAA in 2011 because it did not contain the proper constitutional protections. When my Senate colleagues voted to include those protections in the 2012 NDAA through the Feinstein-Lee Amendment last month, I supported this act. But removing those protections now takes us back to square one and does as much violence to the Constitution as last year’s NDAA,” Paul said.

“When the government can arrest suspects without a warrant, hold them without trial, deny them access to counsel or admission of bail, we have shorn the Bill of Rights of its sanctity.”

2012 National Defense Authorization Act

The 2012 National Defense Authorization Act (NDAA) is the yearly bill to provide funding for the military and defense related items. The 2012 version of this legislation was controversial due to provisions dealing with arrest and detention of terrorists and those affiliated with al-Qaeda.

The legislation affirms that the President has the authority to detain enemy combatants captured on the battlefield under the 2001 authorization for the use of force against the Taliban and al-Qaeda. It then defines those who can be detained as "covered persons" and establishes this group as anyone affiliated with al-Qaeda or the Taliban. The legislation also states that those people can be held until the end of hostilities, until a tribunal with proper authority is established, or until those people are transferred to the proper authority.

Prior to this legislation, a US citizen accused of being allied with al Qaeda or plotting terrorist activity was considered to have committed a crime. Being accused of a crime, these people had civil rights relating to access to a lawyer and the right to remain silent. Floor statements made by Senators indicate that the legislation is intended to change this so that anyone accused of terrorist activity has not committed a crime, but has committed an act of war. In doing this, they do not have the right to remain silent or access a lawyer. In this manner, they can be held indefinitely without the right end this questioning.

This change in classification is accomplished by classifying the US as a battlefield in the war on terror.

The legislation uses the phrase "affirms" when discussing the executive power because the power of the President to arrest and detain enemy combatants on a battlefield is already established. In the case of Jose Padilla and in previous cases during WWII, it was shown that the President can indeed arrest and detain US citizens captured on US soil aiding the enemy in a time of war. However, in the Padilla case, the courts held that since the US is not a battlefield in the war on terror, Padilla must be granted habeas corpus rights and tried as a criminal in the civilian courts. Eventually, Padilla was sentenced to 17 years for his actions.

One section of the legislation states that nothing in the bill is intended to change existing laws with respect to the arrest and detention of US citizens. This has led to a belief that the bill states that it does not apply to US citizens. This is not the case. That section states that current law is not changed by the legislation, but current law already holds that the President already has the power to arrest and indefinitely detain unlawful enemy combatants captured on the battlefield. This legislation merely adds the US homeland as a battlefield and affirms the Presidents authority under that law. Therefore the effect of the law on US citizens is changed without changing the law itself.

Relevant sections of 2012-NDAA Bill

The portions of the legislation dealing with detainee matters were sections 1031 and 1032 of the Senate version and sections 1021 and 1022 of the final House version. Those two sections are identical. The relevant sections of the legislation is titled "Detainee Matters" and is shown here:

Sec. 1021. Affirmation Of Authority Of The Armed Forces Of The United States To Detain Covered Persons Pursuant To Te Authorization For Use Of Military Force.

(a) In General.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.

(b)Covered Persons.—A covered person under this section is any person as follows:

1. A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

2. A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.

(c) Disposition Under Law Of War.—The disposition of a person under the law of war as described in subsection (a) may include the following:

1. Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.

2. Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)).

3. Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.

4. Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

(d) Construction.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

(e) Authorities—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.